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'Disenfranchised, Under-Resourced Populations Are Burdened with Enforcing Major Federal Regulation' Janine Jackson ([link removed])


Janine Jackson interviewed Ariel Adelman about disability and civil rights for the February 16, 2024, episode ([link removed]) of CounterSpin. This is a lightly edited transcript.

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Janine Jackson: In 2000, when the Americans with Disabilities Act was already 10 years old, actor Clint Eastwood was accused ([link removed]) of running a California hotel with inadequately accessible rooms, bathrooms and parking lot. “It's just not fair,” the millionaire complained ([link removed]) , and his beleaguered stance found echo in the press, with the likes of ABC's John Stossel ([link removed]) wondering, if people with disabilities want access to a business or an accommodation that bars them, why don't they "just ask"? Presumably, the answer could be no, but wouldn't that be "the decent thing to do," rather than bringing a lawsuit, which, as Eastwood quipped, means lawyers "drive off in a big Mercedes and the disabled end up riding off in a wheelchair.”

ABC's Stossel, in a segment called “Give Me a Break,” introduced by Barbara Walters, called legal efforts to enforce the ADA a “shakedown racket.” The presentation recasts human rights, never mind compliance with a decades-old law, as fundamentally corporate noblesse oblige.

Unfortunately, that still inflects media coverage, and forms part of the backdrop of a current legal case, Acheson Hotels v. Laufer ([link removed]) . Our guest will bring us up to date on what's happening and what it means.
CEPR: Disability Justice and Civil Rights: The Fight Isn’t Over After Acheson v. Laufer

CEPR (1/31/24 ([link removed]) )

Ariel Adelman is a disability rights advocate and policy analyst. Her piece with Hayley Brown on Acheson v. Laufer appears at CEPR.net ([link removed]) . She joins us now by phone. Welcome to CounterSpin, Ariel Adelman.

Ariel Adelman: Hi, good to be here.

JJ: Most recently, in December, the Supreme Court declined to hear Acheson, and that's significant, but it doesn't mean the core of the case has been fully addressed. I'm quite sure that many listeners have never heard of this case, so if you could talk us through, what are the facts in Acheson v. Laufer, and what's at stake?

AA: I'll give a brief overview of the background of the case. Laufer is a disabled woman with multiple sclerosis who acts as a civil rights tester, specifically for the ADA. Testers are people who basically check to see if people are in compliance with a certain civil rights law. There are individual testers, and testers who volunteer or work for legal organizations.

And so Laufer began testing hotel websites for their compliance with the reservation rule ([link removed]) , after a personal experience with a hotel that violated the ADA's reservation rule. The incident forced her to sleep in her car, when she arrived at the hotel only to find that the room was inaccessible to her.

And something important to note is that it's completely free for businesses to comply with the reservation rule, which is part of title three of the ADA. All it means is they have to add accessibility information about their rooms and other facilities, even if they're inaccessible. The hotel just needs to say the room is or isn't wheelchair accessible, or does or doesn't have visual fire alarms, for example.

So Laufer was acting as a tester when she sued Acheson Hotels for failing to comply with the reservation rule. And after the Supreme Court heard the case on October 4, they dismissed the case on mootness, because Laufer withdrew her claim in fear that the decision would upend “test your rights” as a whole.

And it's important also to know that lawsuits filed by individuals are currently the primary enforcement mechanism for the ADA, which is already generally underenforced. The DoJ is technically in charge of enforcing the ADA, aside from individual lawsuits. The DoJ can sue ADA violators, or they can attempt mediation, which only comprises a tiny percentage of cases.

And the DoJ really doesn't have sufficient incentive, really, to pursue ADA violations in court, even when they're egregious. And so civil rights testers for the ADA, for the Civil Rights Act, for the Fair Housing Act, for any civil rights legislation, they're really needed.

And, unfortunately, that also means that individual suits are an unfair burden, especially when it's on people who are being actively discriminated against. And testers fill that gap, so that people with very few means—which is important to note, that disabled people are generally living in forced poverty; they don't have the means, the time or the health, really, to bring a lawsuit to sue every single person that violates the ADA. If we were doing that, every disabled person would just constantly be in court, suing people. So testers are really needed to fill that gap.

JJ:The objection to testers has been about standing, right?

AA: Yes. So the big issue at the center of this case is standing, and standing is basically whether or not you have the right to sue. And the case that sets up important precedent for Acheson v. Laufer is Havens Realty Corp v. Coleman ([link removed]) , which was a 1982 Supreme Court case that established standing to sue for civil rights testers, regardless of whether they expected to be discriminated against, and, importantly, regardless of their intent to, for example, in that case, buy or rent a home.

So Havens established, it doesn't matter if you do truly intend to use that good or service. If you're discriminated against, that constitutes a real injury. And that includes dignitary injury. There's a bunch of legalese we could go into, that the article covers, but basically you need to know, Havens is already established. You don't need to actually truly intend.

Unfortunately, the court's opinion ([link removed]) in Acheson, and Acheson’s lawyer's argument hinged, in part, on the idea that Laufer supposedly had no intent to stay at the inn owned by Acheson Hotels. And the court's opinion and Justice Thomas' concurrence ([link removed]) repeatedly referred to Laufer, and to civil rights testers in general, as “serial filers,” which, to me, showed pretty open disdain for civil rights testing, despite testers having standing enshrined by Havens for over four decades at this point.

JJ: In case anyone is missing it, the idea is, if you are a person with a disability, you need to wait until you are actively suffering harm, and then you can have standing to sue. And we can't do proactive compliance testing, with testers who go in to see whether, in fact, these accommodations or venues or whatever are compliant. The idea is, well, “You were just pretending you were going to stay at this hotel, and therefore you don't have standing to sue that the hotel or whatever is inaccessible.”

AA: That's kind of the status quo that the conservative elements of the court are gunning for, and business interests in general are hoping for, because they don't want to have to comply with civil rights law, even if it's completely free to comply with it.

JJ: And the idea, I think, for the general public is, well, we have the ADA, so something has already happened to make all businesses aware that they need to be compliant, and so why do lawyers need to get involved? But the truth is, the ADA doesn't have a lot of aggressive enforcement attached to it. So there's a real critical role for these testers.

AA: Exactly. And the point that my co-author Hayley Brown and I make in our report is that, one, testers fill a really important gap in enforcement. And two, if people are really taking issue with the concept of civil rights testers, that means that we would need to have really aggressive, as you said, proactive enforcement on the part of the government to enforce these civil rights laws, because people right now are just getting away with completely flouting civil rights laws with no consequences.

JJ: What do you think are the implications if Acheson v. Laufer goes the wrong way? I mean, what should folks understand? I'm happy to center the ADA and disabled people at this point, but it does actually have huge implications if we decide that civil rights testers don't have standing to bring lawsuits.
Ariel Adelman

Ariel Adelman: "How would we go about suing every single time we have our rights violated, when that happens every single day?"

AA: So this case was dismissed on mootness, but if you read the opinion of the court and the concurrence by Justice Clarence Thomas, they make it extremely clear that if this were not dismissed on mootness, they would have ruled in favor of Acheson, which would effectively upend and eviscerate civil rights testing.

And that has really dire consequences for enforcing and maintaining civil rights in general, because that means that overwhelmingly disenfranchised, impoverished, really under-resourced populations are now being burdened with the task of enforcing major federal legislation. And, again, these communities are extremely under-resourced. How would we go about suing every single time we have our rights violated, when that happens every single day?

And the businesses we're going up against often have these monstrous legal teams that could take down anyone in court. And, of course, with a court that doesn't want to side with disabled people, it's really just bad news for civil rights in general in the United States.

JJ: CounterSpin listeners in particular might remember the case Food Lion ([link removed]) , in which reporters in 1992, reporters from ABC's Primetime Live, went undercover to investigate claims of unsanitary food handling at Food Lion, the supermarket chain. And they found it: old meat being redated and put out again, out-of-date chicken getting soaked in barbecue sauce and then moved to the gourmet section.

But then Food Lion sued ABC, not so much on the accuracy of the story, but that the reporters misrepresented themselves fraudulently by applying for jobs, and then since they were there fraudulently, they were trespassing. And Food Lion won; they won $5.5 million in 1997.

And this chilled investigative reporting as inherently deceptive ([link removed]) , for getting stories that they couldn't get otherwise, and revealing things that were true and in the public interest. And I tie that here because Acheson seems to have implications also for journalism, at least in the way that it touches on the public's right to know, and the right to know things that folks don't want to show us.

AA: Interestingly, the opinion talks about the right to information—or I should say, I think it was actually Justice Thomas' concurrence that talks about whether or not people have a right to information under the reservation rule. And he argues that it doesn't, even though, at least in my view, in plain text, and according to a lot of disability rights scholars, it does give you the right to information.

And when business interests, or even government entities, are allowed to cloak themselves in uncertainty, even when people affected by their civil rights violations or health code violations, violations of any kind of protection, even if people know for a fact that they're violating these laws, there's really no way to bring that to light until you're actually harmed. And that could harm people, it can kill people.
Extra!: Is Undercover Over?

Extra! (3–4/08 ([link removed]) )

In the case of that supermarket, if we had to wait for multiple people to die, there's a death toll to not being able to uncover health code violations. In the case of the ADA, Laufer had to sleep in her car. And who knows if someone has died because they slept in their car, because they didn't have adequate shelter? What if there was a snowstorm?

And that's just with inadequate access to information. There's, of course, issues of literal physical access to buildings. But I think people really undercount the importance of access to information, because if you don't have proper information, you can't make the proper decisions to keep yourself safe.

And that's actually an issue of equal dignity. I wanted to quote from the ACLU amicus brief for Laufer ([link removed]) , where they said, “Guaranteeing equal dignity was an animating purpose of the statute’s”—the Civil Rights Act of 1964, its “other antidiscrimination protections.”

And I think that's really important to keep in mind, is that equal dignity is at the center of basically every civil rights statute. And if we can't guarantee equal access to information, which is part of the issue in Acheson v. Laufer, then you don't have equal dignity. And that is not only legally wrong, as it constitutes a dignitary injury, but it's also morally wrong, if we want to treat disabled people, or anyone part of a marginalized group, as an equal person in society.

JJ: And that equal dignity runs right up against where we started: “Well, why don't they just ask? Why don't they just come, hat in hand, and say, ‘Hey, I'd really like to get into your restaurant.’ And then maybe we would say, ‘OK, you could come around the back and we can let you in this other entrance.’” Dignity is often missing from that whole conversation about what businesses are required to do, as if we aren't talking about human beings.

AA: It’s so bizarre to me. I mean, it's not bizarre, because I expect it, because ableism is so entrenched in our society. But if you asked someone, “Oh, do you think it would be OK if instead of having robust health code enforcement, if we should just ask if people in restaurants could wash their hands before cooking our food?” Or if small businesses dodge state taxes for 10 years, nobody would go, “Oh, well, they didn't know any better, and nobody asked them for those taxes. It's really not their fault.” We only really treat it like this when it comes to civil rights, and it's not OK.

And a lot of that, I think, is because our society places a really high premium on productivity, and sees disabled people—and, by extension, other marginalized people, whether racially, in terms of gender, religion—they see us as a drain, rather than as a vital part of the population. And as I want to point out to people, disabled people comprise at least a quarter of the population, and that's rising, because of the ongoing pandemic, which many people have called a mass disabling event ([link removed]) .

So we comprise a very large part of society, but people see us as a drain, or they think that our rights shouldn't really be real, because we're perceived as not being productive or contributing to society.
FAIR: A Right, Not a Favor

Extra! (11–12/00 ([link removed]) )

JJ: And, finally, the way that folks are seen has not everything, but a lot to do with news media. And back in 2000, many years ago, I wrote about ([link removed]) major news outlets presenting the ADA as mainly a regulatory issue affecting private businesses, rather than a human rights issue facing society as a whole.

And my beef, among many others, at the time, as now, was that we saw stories about “It goes too far." "The ADA goes too far, it's too expensive and it harms and it's well-intentioned, but it actually harms.” And that those stories were not sufficiently countered by stories saying, “Well, what if it doesn't go far enough?” And then, instead, you get the hardy perennial of, “We've come a long way, but there's still a long way to go.”

It's not unique, but I feel like there is something special about the way the rights of disabled people, a community that anyone can join at any minute, are somehow never urgent. They're never front-page news, somehow, there's never urgency attached to it. And I just wonder, finally, what you think about media coverage, and what you would like to see more of, what you'd like to see less of, in terms of news media?
Vox: A Supreme Court case about hotel websites could blow up much of US civil rights law

Vox (9/25/23 ([link removed]) )

AA: As you said, it's never seen as urgent or important, despite it being the only marginalized group that you could join at any point. I think that most coverage is really unnuanced, and tends to be overly sympathetic to business interests.

There's one reporter that I think has had good coverage of this case specifically, which is Ian Millhiser over at Vox. ([link removed]) I think his articles are excellent.

With everyone else, there's headlines like the “Supreme Court Dodges This Ruling ([link removed]) ,” or “This Woman Sued Over 600 Hotels ([link removed]) ,” but they never have any headlines that are anything like ”Tourism Industry Tends to Fail to Comply With the ADA,” or “This Hotel Owner and Former Anthropology Professor Repeatedly Flouts Civil Rights Laws.”

And, again, if it were any other major regulatory issue, nobody would really question it, except for maybe small sections of society. But most people think, yeah, we should probably have people regularly checking up to make sure the building doesn't fall down on us because it's not up to code, or that we can escape in a fire, or that people are washing their hands before they cook, or give us vaccinations.

And like you said, it's treated as not urgent. And I think, in part, it's because disabled people are not just seen as a drain, but we're seen as somehow cunning, or kind of getting one over on the system. And we've seen this kind of backlash before: After the 1918 influenza, postviral disability skyrocketed, and so did the popularity ([link removed]) of eugenics and fascism. And so we've had reactionaries going after disability rights the exact same way they're going after immigration, abortion rights, racial equality, labor protections.
CEPR: The Long Reach of Long COVID: At Least 4.4 Million Adults are Currently Disabled by Long COVID

CEPR (10/12/22 ([link removed]) )

And a huge problem is that people across the political spectrum, especially white people, are hostile to the idea that disabled people should have rights at all. And that really is reflected in media, and then it's reflected back on the population, and then artistic media reflects that back, and then journalism. It's like a cycle that perpetuates this idea that disabled people are a drain, and their rights are somehow a zero-sum game, that they're stealing rights from other people.

I did want to add in that there's really important work being done on these issues, and that if people want to continue to educate themselves, and to follow ongoing disability rights issues, look at my co-author Hayley Brown's ongoing work on disability and labor, her co-authored piece, “The Long Reach of Long Covid.” ([link removed]) And CEPR also has an updated chart book coming on disability and economic justice.

So keep looking at those. There's really mind-boggling stats that you'll find that CEPR digs up. Their work is incredible, and I think everyone should look at disability as a cornerstone of civil rights as we are fighting against right-wing reactionaries.

JJ: All right then. We've been speaking with Ariel Adelman; the piece “Disability Justice and Civil Rights: The Fight Isn’t Over After Acheson v. Laufer” ([link removed]) can be found at CEPR.net. Ariel Adelman, thank you so much for joining us this week on CounterSpin.

AA: Thank you.


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